Practice and procedure – Adverse possession claim – Land Registration Act 2002 – County court claim for anti-social behaviour order against tenant – Claim alleging trespass – Tenant claiming rights to land by adverse possession – Para 1 of Schedule 6 to 2002 Act – Whether county court entitled to determine adverse possession issue – Whether proper to adjourn proceedings pending outcome of tenant’s application to Land Registry for registration of possessory title based on adverse possession – Whether such application precluded by para 1(3)
The defendant was the tenant of a ground-floor flat under a secure tenancy granted by the claimant landlord in 2000. His demise included part of the rear garden of the premises and a right of way over an adjacent passageway, which right was enjoyed in common with the claimant and the owners and occupiers of the adjoining properties. In June 2011, the claimant applied for an anti-social behaviour injunction against the defendant, under the Housing Act 1996, complaining that he had impeded access over the passageway by installing a lock on the gate and erecting greenhouses, which, along with a gazebo, trespassed on the garden of the first-floor flat and the passageway.
In his defence, the defendant claimed to have acquired rights by adverse possession. A few weeks before the trial, the defendant sought an adjournment on the ground that he had just made an application to the Land Registry, under para 1(1) of Schedule 6 to the Land Registration Act 2002, to register a possessory title to the relevant pieces of land based on more than 10 years’ adverse possession.
The county court judge held that the defendant’s Land Registry application was precluded by para 1(3) of Schedule 6 as being made by a “defendant in proceedings which involve asserting a right to possession of the land”, within the meaning of that provision. The judge adjourned the trial for other reasons and gave further directions relating to the court’s determination of the issue of adverse possession.
On appeal against that order, the appellant contended that: (i) the court had no direct role in determining the issue of adverse possession since that matter could be resolved only in accordance with the statutory procedure laid down by the 2002 Act; and (ii) his right to apply to the Land Registry to have his interest registered should not be inhibited by the court proceedings and was not precluded by para 1(3), which applied only to prevent a tenant from making such an application in response to possession proceedings.
Held: The appeal was allowed. (1) The county court was not entitled to determine whether the defendant had acquired a title by way of adverse possession. Under the 2002 Act, a person can acquire an effective title by adverse possession only if certain procedural requirements are fulfilled, including the making of an application to the Land Registry. The relevant period of adverse possession cannot in itself create a right. The means of acquiring a title by adverse possession has therefore been placed firmly in the hands of the Land Registry and the court cannot arrogate to itself the functions that are now, at first instance, to be discharged by the Land Registry. Accordingly, unless and until an application to the Land Registry is made, no title by adverse possession can be acquired and there is nothing on which the court can adjudicate. Section 21(2) of the County Courts Act 1984, giving the court jurisdiction to hear and determine any action in which the title to a hereditament comes into question, does not affect the position. That general provision cannot take precedence over the specific provisions of the 2002 Act; moreover, for the above reasons, no question of title fell to be determined in the instant proceedings. (2) Para 1(3) of Schedule 6 to the 2002 Act did not preclude the defendant from applying to the Land Registry. That provision applies only to proceedings in which a claimant is asserting a right to possession and does not apply where it is the defendant who asserts such a right. The defendant was entitled to make his application to the Land Registry and the trial be adjourned to await the outcome of that application.
Per curiam: The only circumstances in which the court will now be called on to adjudicate on whether someone has been in adverse possession for the necessary period is in the context of a defence, under section 98 of the 2002 Act, to an action for possession of land.
This was an appeal by the defendant, Cary Gill, from an order of HH Judge Paul Collins CBE, sitting in Southend County Court, giving directions for the trial of a claim by the claimant, Swan Housing Association Ltd, for an anti-social behaviour injunction notwithstanding the existence of an application by the defendant to the Land Registry for registration of a possessory title to relevant land on the grounds of adverse possession.
Andy Creer (instructed by Batchelors) appeared for the claimant; Stuart Armstrong (instructed by Chennells, of Westcliff-on-Sea) appeared for the defendant.
Giving judgment, Eady J said:
1. Mr Cary Gill seeks permission to appeal, and to do so out of time, against an order of HH Judge Paul Collins CBE, sitting as a deputy circuit judge in the Southend County Court, dated 18 April 2012. At the outset, I gave permission to appeal out of time and the hearing concentrated on the substantive issues.
2. The claimant in the proceedings (and now the respondent) is a housing association and the registered proprietor of the ground-floor flat, 3A St Mary’s Road, Southend on Sea, which is sublet to Mr Gill under an assured tenancy beginning on 20 March 2000.
3. The respondent’s demise includes part only of the rear garden at the premises and also a right of way over an adjacent passage. It is defined as “the right in common with the landlord and the owners or occupiers for the time being of the adjoining properties Nos 1 and 5 St Mary’s Road at all times but on foot only to pass and re-pass over and along the passageway”.
4. On 29 June 2011, the respondent applied for an antisocial behaviour injunction, in accordance with sections 153A and 153D of the Housing Act 1996. It was no part of the respondent’s claim to seek possession of the property. The complaint was that Mr Gill was continuing to:
(i) impede access over the passageway running adjacent to the property by installing a lock on the gate and by the erection of greenhouses;
(ii) trespass on the garden of the first-floor flat and the passageway by reason of erecting a gazebo along with the greenhouses already referred to.
What is alleged is that the gazebo extends, on one side, over that part of the back garden which has not been demised to either of the parties: on the other side, the greenhouses overlap the side passage.
5. By a defence filed on 7 October 2011, Mr Gill relied upon his belief at the time that a right had been obtained by way of adverse possession in respect of both the garden and the passageway. In fact, it is no longer possible to acquire a title merely through adverse possession: an application would have to be made to the Land Registry.
6. On 28 March 2012, Mr Gill sought to adjourn the trial, which had been listed for hearing on 18 April, on the ground that he had that very day made an application to the Land Registry in respect of title numbers EX362681 and EX770689. He wished to register possessory title to the relevant pieces of land based on more than 10 years’ possession. If he was successful, this would be relevant to the respondent’s claim against him. It was the second such application he had made, an earlier one having been already dismissed. (Mr Gill claims that this did not represent a determination on the merits but was simply because, without at that stage the benefit of legal advice, the prescribed form had not been properly completed.)
7. The judge did adjourn the trial, but not for the reason Mr Gill put forward. There seem to have been three matters which concerned him. He relisted the hearing of the trial and gave directions. He ordered that the freeholders of the two neighbouring properties should be joined as parties with a view to the court determining the issue of possession with all interested persons present; he gave the respondent the opportunity to obtain fresh evidence; and he required that the Land Registry be informed of the court proceedings. He held that Mr Gill was not entitled to make the application to the Land Registry by reason of Schedule 6, para 1(3) of the Land Registration Act 2002.
8. There are two grounds of appeal. It is logical to consider first the argument that the court simply has no direct role nowadays in determining the issue of adverse possession. The matter can only be resolved in accordance with the statutory procedure laid down in the 2002 Act. The other ground relates to the judge’s interpretation of para 1(3) of Schedule 6. It is said that he was wrong to conclude that this prevented Mr Gill from making an application to the Land Registry.
9. In short, it is Mr Gill’s case that he had acquired, by adverse possession, the right to apply to have his interest registered at the Land Registry under the 2002 Act. Furthermore, there is no reason why these court proceedings should inhibit him from doing so. The only situation in which such an inhibition was contemplated by Parliament was where an application is being made by a tenant in response to possession proceedings. That, says Mr Gill, is the effect of para 1(3). It has no relevance to the present facts because the claim is not one for possession but for an injunction.
10. I turn to the effect of this legislation on the role of the court. It is argued by the respondent that the court’s jurisdiction can only be ousted expressly. This is to ignore, however, the whole basis of the 2002 scheme. A person can only acquire an effective title by adverse possession if certain procedural requirements are fulfilled. It is necessary to make an application to the Land Registry. Unless and until that happens, no such title can be acquired. Ouster is thus nothing to the point. There would be nothing for the court to adjudicate upon. It is not like the old days, when 12 years’ adverse possession could in itself create a right. Whether it had done so, in any given circumstances, might well be a matter for the court’s adjudication, but that is no longer the position.
11. The question previously turned upon sections 15 and 17 of the Limitation Act 1980. It is common ground that section 15 no longer applies by reason of section 96 of the 2002 statute. It had hitherto set a limitation period of 12 years for the recovery of possession and section 17 had provided, in the case of unregistered land, that the owner’s title would thereupon be extinguished.
12. The position in relation to registered land used to be that once the relevant limitation period had expired the owner would hold the title on trust for the squatter: section 75 of the Land Registration Act 1925. Now, however, no limitation period runs against the owner of an estate in registered land: section 96(1) of the 2002 Act. Accordingly, section 17 of the 1925 Act no longer operates to extinguish the title of any such person: section 96(3).
13. Whereas, formerly, the court would regularly be called upon to adjudicate upon whether someone had been in adverse possession for 12 years, this will now only be required for the purposes of section 98 of the 2002 Act, which provides in certain prescribed circumstances for a “defence to an action for possession of land”. That has no relevance here, since obviously it is not a claim for possession. The means of acquiring a title by adverse possession has been firmly placed in the hands of the Land Registry: Schedule 6, para 1(1) of the 2002 Act. The mischief is thus avoided whereby an owner could lose possession without notice. The statutory scheme provides for an adjudicator to determine disputed issues where necessary: s.73(7).
14. Thus, it is submitted that the court should have acknowledged that it was not appropriate to determine the question of adverse possession. The judge should have granted the adjournment sought so as to enable the statutory procedure to take its course. The court proceedings could then be determined in the light of the outcome of the application to the Land Registry. Correspondingly, there was no point in adding the other parties.
15. These submissions appear to me to be correct. It is not for the court to arrogate to itself the functions now to be discharged, in the first instance, by the Land Registry. Ms Creer, for the respondent, referred to the general provisions of section 21 of the County Courts Act 1984 relating to the court’s jurisdiction, but they cannot possibly take precedence over the specific provisions of the 2002 Act. It is provided by section 21(2) that a county court shall have jurisdiction to hear and determine any action in which the title to any hereditamernt comes in question. For the reasons already explained, however, there is no question of title to be determined in these proceedings.
16. The other argument is that the judge was wrong, in any event, to hold that Mr Gill was prevented from applying by Schedule 6, para 1(3). This provides simply that a person may not make an application to the Land Registry under para 1(1) if he is a defendant in proceedings which involve asserting a right to possession of the land. Mr Gill submits that this only applies to proceedings in which a claimant is seeking possession (or a right to possession) of the land in question. It is said that the provision cannot be taken as referring to a defendant such as Mr Gill. A squatter can no longer acquire an accrued “right to possession”, since the limitation period does not run against the registered proprietor. It is a sine qua non that an application to the Land Registry must have been made before any such right could have been acquired. Accordingly, the only assertion of a right to possession in the draftsman’s contemplation must have been that of a claimant.
17. My attention was drawn in this context to the Law Commission Report No 271, para 14.26, which identifies the objective of the proposals (later embodied in para 1(3) of the Schedule) as being to prevent a squatter from applying to be registered when there are current proceedings in which the registered proprietor could obtain possession of the land. The point was developed in para 14.27, where it was explained that the registered proprietor should be able to take such proceedings without the risk of having to fend off an application for registration by the squatter at the same time. There is nothing the drafting of the statute to suggest that these passages in the report do not accurately reflect the legislative purpose.
18. It is to be noted from the transcript of the hearing before the judge that he seems to have misquoted the terms of para 1(3). It actually provides that a person may not make an application for registration under para 1(1) if “he is a defendant in proceedings which involve asserting a right to possession of the land”. The judge wrongly substituted “his” for “a”; in other words, he took it to be referring to proceedings in which the defendant was asserting his right to possession. In fact, as Mr Gill contends, it is an assertion by the claimant that matters.
19. There would be no point in postponing Mr Gill’s application for registration, since the court’s decision could have no effect upon it. The only circumstances in which the court can make a direction on the issue of registration are those contemplated by section 98(5) of the 2002 Act. Since the section only applies to possession proceedings, it is not relevant.
20. The judge was also under the mistaken impression that Mr Gill should have informed the Land Registry of the proceedings pending before the county court, but Mr Gill had followed the practice guidance correctly. He was only required to state whether there were any possession proceedings extant. That is obviously because para 1(3) is concerned only with proceedings in which a right to possession is asserted. There was no reason for Mr Gill to be criticised in this respect (and no particular reason why the injunction claim needed to be adjourned for the Land Registry to be informed about it).
21. Unfortunately, the judge did not have the advantage of the full submissions which have been available to me on the appeal. In the light of the material now before me, I would allow the appeal on the basis that the judge misinterpreted the law in concluding (i) that it was for the county court to determine whether Mr Gill had acquired a title by way of adverse possession, and (ii) that Mr Gill was not permitted to make an application to the Land Registry. The trial should have been adjourned to await the outcome.
Appeal allowed.
